Minnesota Battle Brewing Over State Pardon for Alien with 1992 Assault Conviction

DHS issued a press release earlier this month headlined “MINNESOTA MADNESS: Minnesota Board of Pardons Unanimously Pardons Criminal Illegal Alien Convicted of Two Counts of Assault”. The criminal illegal alien in question is Laotian national At Chandee, and the department claims he was convicted of two counts of assault in 1992, was ordered removed in 1995, and is currently in ICE detention. The wildcard in this case is a quickie pardon issued by the Minnesota Board of Pardons on May 4. Chandee’s case is now in the U.S. Court of Appeals for the Eighth Circuit, and the outcome hinges on an obscure “federalism loophole” in the Immigration and Nationality Act (INA) that Congress could close at any time.

Assault Under Minnesota Law

Given the intense emotions surrounding his case in the Land of 10,000 Lakes, the facts surrounding Chandee’s criminal conviction are somewhat elusive.

For example, here is a tweet DHS issued on May 6:

While most reporting on Chandee’s case has referred to his 1992 conviction as “assault”, that term is unfixed and varies from state to state. I’ll take DHS at its word when it claims that Chandee has a conviction for “aggravated assault with a weapon”, though apparently the department edited its initial press release to delete the claimed 2008 conviction.

Assault requires intent under Minnesota law, either “to cause fear in another of immediate bodily harm or death” or to inflict “or attempt to inflict bodily harm upon another”, and assault with a weapon is a crime under Minnesota Statutes section 609.222, which reads as follows:

Subdivision 1. Dangerous weapon. Whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.

Subd. 2. Dangerous weapon; substantial bodily harm. Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

The “Categorical Approach” to Defining Removable Offenses

Most criminal grounds of removability in the INA don’t refer to specific criminal statutes or render aliens removable for violation of such statutes. Instead, Congress broadly stated that certain kinds of crimes render aliens removable and left it to the other two branches to apply those grounds to specific state and federal crimes.

For example, section 237(a)(2)(A)(i) of the INA mandates the removal of aliens “convicted of a crime involving moral turpitude [CIMT] committed within five years ... after the date of admission” if “a sentence of one year or longer may be imposed” for that crime.

The sentence requirement is easy to apply, and determining the timing of such an offense is only slightly more complicated. The main question, therefore, is whether the crime is one of “moral turpitude”.

In interpreting that and other criminal-based grounds of removal in the INA, the courts and Board of Immigration Appeals (BIA) apply what’s called the "categorical approach", a concept cum calculus first utilized in federal criminal sentencing cases.

Briefly, as the Supreme Court made clear in its 2013 opinion in Moncrieffe v. Holder (a drug-trafficking removal case), the categorical approach doesn’t look at the facts of the alien’s conviction, but rather at “whether ‘the state statute defining the crime of conviction’ categorically fits within the ‘generic’ federal definition of a corresponding" ground of removability.

It’s a difficult concept to grasp in the abstract, and only slightly easier to apply in practice, but consider “burglary”, a crime in every state but defined in various and different ways under each state’s law.

In Taylor v. U.S., a federal sentencing case, the Court formulated a federal generic definition for burglary with three elements: (1) “an unlawful or unprivileged entry into, or remaining in”; (2) “a building or other structure”; (3) “with intent to commit a crime”.

Under section 101(a)(43)(G) of the INA, “burglary” is an aggravated felony for purposes of the act if the term of imprisonment was at least one year, and a state conviction is thus an aggravated felony for immigration purposes if it includes at least all the elements of the “generic definition” of that term in Taylor.

The same is true under section 236(c)(1)(E)(ii) of the INA, as amended by the Laken Riley Act, which mandates the detention of any alien who “is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary”, and as burglary has been recognized as a CIMT, for deportability under section 237(a)(2)(A)(i) as well.

Any state “burglary” conviction under a statute that doesn’t include all the elements in the generic federal definition, however, isn’t considered “burglary” for purposes of the INA or other federal laws.

“Aggravated Assault with a Weapon” as an Aggravated Felony and CIMT

Which brings me back to Chandee’s ostensible 1992 Minnesota conviction for aggravated assault with a weapon.

That conviction would be a “crime of violence” under 18 U.S.C. §16(a), “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”, and fortunately for those applying the categorical approach, section 16(a) has been adopted as the federal generic definition of “a crime of violence” for purposes of the INA.

Section 101(a)(43)(F) of the INA states that any “crime of violence as defined in section 16 of title 18, but not including a purely political offense” is an aggravated felony, provided the alien received a “term of imprisonment” of “at least one year”.

Curiously absent from any discussion of Chandee’s 1992 conviction is the sentence he received for that offense, but inasmuch as he was lawfully admitted, had a green card, and was ordered deported for that crime, I’ll assume he was charged with deportability under section 237(a)(2)(A)(iii) of the INA as an alien “convicted of an aggravated felony” as defined in section 101(a)(43)(F) “at any time after admission”.

Given that the elements of assault under Minnesota law — again an intent “to cause fear in another of immediate bodily harm or death” or inflict “or attempt to inflict bodily harm upon another” — “require reprehensible conduct and a culpable mental state”, that crime is also a CIMT, and dependent on when Chandee entered this country and the sentence he received, he may have been removable under section 237(a)(2)(A)(i) of the INA, as well.

The Removal Order and Pardon

Regardless, it appears undisputed that he was ordered deported in 1995, but because Laos only began accepting U.S. deportees in May 2025, his deportation order went unexecuted for about three decades.

He was taken into custody during ICE’s Minnesota-focused “Operation Metro Surge”, which began last fall, and was supposed to be sent back home on May 5, but his family asked the state to review his 1992 conviction.

On May 1, the Minnesota Clemency Review Commission voted unanimously to recommend he receive a pardon, and three days later the state’s Board of Pardons — which consists of Gov. Tim Walz (D), Attorney General Keith Ellison (D), and “nonpartisan” Supreme Court Chief Justice Natalie Hudson — unanimously granted that pardon.

Walz and Ellison are no fans of either ICE or Operation Metro Surge, so the outcome was likely little surprise, and as the pardon board wasn’t supposed to meet again until June, ensuring Chandee wasn’t removed was likely high on their agenda.

That said, Justice Hudson notably refused to block ICE enforcement from the state’s courthouses in early March, and therefore she was likely more of an honest broker.

The Effect of State Pardons on Aliens’ Deportability

Under section 237(a)(2)(A)(vi) of the INA, an alien can’t be removed under the criminal deportation grounds in section 237(a)(2) for CIMTs, aggravated felonies, and “high-speed flight from an immigration checkpoint” if the alien “has been granted a full and unconditional” presidential or gubernatorial pardon for the conviction that formed the basis for such charge.

That said, until Chandee reopens his 1995 deportation proceedings and has his deportation charge(s) dismissed, he remains under a final order of deportation. Don’t be surprised if the Eighth Circuit remands his case back to the immigration court to allow him to reopen his case there — and don’t be shocked if the immigration court dismisses his deportation proceedings.

Whether Minnesota’s state pardon of Chandee’s 1992 conviction is “madness” depends on the as-yet undisclosed facts of his criminal case and the as-yet unstated sentence he received for his state assault conviction, as well as your opinion of whether leniency is appropriate here given the age of the conviction and DHS’s inability to deport Chandee for three decades due to no fault of its own.

Immigration is a uniquely “federal issue” but: (1) the United States is a federal republic where D.C. shares sovereignty with the states; and (2) most crimes (like Chandee’s) are prosecuted by the states, not the feds.

Consequently, removals under the INA usually hinge on state prosecutions and convictions, and Congress expressly granted state governors limited authority to wipe away the immigration consequences of those state convictions using their pardon powers.

That said, the BIA has made clear that under the definition of the term in section 101(a)(48)(A) of the INA, a “conviction” remains valid for immigration purposes notwithstanding a “state action which purports to expunge, dismiss, cancel, vacate, discharge, or otherwise remove a guilty plea or other record of guilt or conviction by operation of a state rehabilitative statute”.

Only a “full and unconditional” pardon counts, and the Eighth Circuit may yet assess whether the pardon granted by Walz, Ellison, and Hudson on May 4 satisfied that standard. Things done in haste are often done in error, but again don’t be surprised if the board convenes again quickly if the circuit court has any issues.

The “Sanctuary” Factor

Prior to the rise of “sanctuary” jurisdictions — states and localities that actively attempt to stymie and/or impede immigration enforcement — the impact of gubernatorial pardons on removal cases was still a contentious issue, but they were rarely politically charged.

Those days are gone, but as I noted in November 2020 when California Gov. Gavin Newsom (D) was on an immigrant pardon spree, voters can decide whether they want to keep a governor who pardons aliens strictly to ensure they aren’t removed.

Of course, as this is a federal republic, pardoned aliens can move elsewhere, and voters in other states impacted by new crimes committed by aliens once pardoned by Walz in Minnesota, Newsom in California, or any other sanctuary-minded governor have no recourse to toss out the pardoner.

Immigration is a uniquely federal issue, but most criminal deportation cases rely on state convictions. In the interest of federalism, Congress opted to give limited immigration effect to pardons issued by state governors for convictions that would otherwise have immigration consequences. That said, because immigration is a federal issue, Congress can close that “federalism loophole” any time it wants.